The Walrond Recommendations: Caution Needed

In February 2004 the Office of the Attorney-General
commissioned “a review of the legislation relevant to HIV/AIDS and the
attendant socio-economic impact” with a view to producing “a comprehensive
report providing recommendations for changes in existing laws, laws that
should be removed from the statute books and the socio-economic benefits of
such actions”. The study was carried out by Professor E.R. Walrond who noted
in the Executive Summary of the document that “the recommendations will
impact on all areas of the society and challenge the prejudices, beliefs and
fears of many”.

The report is an interesting one and quite a number of
the recommendations put forward are worthy of serious consideration and,
indeed, of immediate implementation. However, some of them are unsound and
should be completely ignored. This article draws attention to some of the
desirable and worthwhile recommendations and also identifies some that should
be discarded without hesitation.

Several of the recommendations have to do with sexual
intercourse between adults and children whether male or female and some of
these are presented below:

With respect to protection of children the legislation
against adults who may be in authority or temporary guardianship over them ...
should be amended to read:

an adult who has sexual intercourse with a
minor who is

a) the adult’s adopted child,
step-child, foster child, ward or dependant in the adult’s custody, or

b) who is under the adult’s authority or
temporary guardianship is guilty of an offence ...

In addition, the report advocates that the section of
existing law which “deals with permitting the defilement of a minor under 16
years of age should be extended to include the willing exploitation of
children for direct or indirect financial support ... (and) should (also) be
extended to include parents and guardians”. It further notes that “In a
number of countries it is said that in order to try and rid oneself of a
sexually transmitted disease, including HIV, there is a practice of having sex
with a virgin, who is usually a child. The extent of such practice in Barbados
is not known. However sexual abuse of children is thought to be commonplace
and there is a need for the legislation related to the sexual abuse of
children to be strengthened and clear”. These recommendations and others
such as the enactment of legislation to “ensure the confidentiality of
medical records, except for patient care and research purposes” are sound
and eminently desirable. They are clearly in the best interests of our country
and should be implemented without delay.

However, some of the recommendations are undesirable, or
naïve at best, and would most certainly NOT be in the best interests of
Barbados. Take first of all the issue of buggery. The report correctly notes
the “widespread acknowledgment that sexual activity goes on in prisons in
both overcrowded cells and in areas such as showers ... and is primarily by
unprotected anal intercourse between men”. Arguing that prison authorities
have a responsibility “to prevent the spread of disease among inmates” the
report proceeds to recommend that “condoms should be designated in the
correction facilities as toilet articles, and made available through the
correction’s health care/ counselling facilities”. Under our law buggery
is a crime. Logically, therefore, provision of condoms by authorities
controlling the prison could quite reasonably be interpreted as a deliberate
attempt to encourage or at least facilitate breaking the law of Barbados.
Professor Walrond recommends that “The law against buggery/ sodomy Sexual
Offences Act should be amended and be replaced by one that makes buggery an
aggravated offence in a sexual assault”. This is a very upside down and
completely unacceptable way to deal with this problem of buggery in our prison
because the proposed change would also relate to persons outside the prison.
Professor Walrond notes that “the availability of condoms to prisoners has
occasioned much emotional debate, largely centred in Barbados on the
contention that this would condone an illegal act, namely buggery”, but he
appears to hold to the view that that this would be desirable because it might
to some degree reduce “the spread of HIV and other STD’s”.

Any proposal that condoms should be made available in our
prison is undoubtedly a matter that will continue to evoke strong feelings
among Barbadians and it is to be hoped that citizens of our country will
remain firm in their opposition to any change in legislation likely to give
approval to, or diminish punishment for, buggery. It is an issue on which, as
a nation, we should not compromise and we should oppose as strongly as we can
any proposal to change the law.

Then there is the issue of prostitution and, as the
report acknowledges, “like buggery suggestions to decriminalise prostitution
evoke very adverse societal responses particularly from the religious
community”. In its naivety the report therefore suggests that “one could
through the law try to bring prostitutes into a regulated public health
framework ... (involving) the amendment of laws such as that related to
brothels and other related activity”. However, it is remarkably simplistic
to believe that requiring prostitutes to register will ensure that they remain
healthy and will obtain proper and regular treatment for sexually transmitted
diseases. This matter will be explored in Part 2 of this article.

(Dr. Leonard Shorey, GCM, is an educator and a
commentator on social and political issues.)

The Walrond Recommendations: Caution Needed

Research carried out in other countries with respect to
decriminalisation of prostitution and registration of prostitutes indicates
that it is naïve and completely unrealistic to believe that requiring
prostitutes to register themselves will reduce significantly transmission of
STDs. The extracts below speak for themselves, requiring little additional
comment from this writer. They are taken from the General Conclusions and
Recommendations of: the European Intervention Projects Aids Intervention for
Prostitutes (http://allserv.rug.ac.be/~rmak/europap/summary.html).

Greece had the most strict regulations regarding
registered prostitutes, with mandatory medical screening twice a week. As a
result, most sex workers avoided registration, which made them liable for
prosecution. All health care facilities and HIV prevention activities for
prostitutes were limited to those who are registered. This is ineffective in
public health terms: in Athens approximately 400 women are registered, while
an estimated 5 000 more prostitutes are not registered.

In Germany, approximately 50 000 sex workers are
registered and are regularly seen by the health services, as required by the
laws to combat venereal diseases. However, according to recent estimates a
further 150 000 people work in prostitution. Experience in the fight against
other sexually transmitted diseases has already illustrated the limits of
compulsory health screening. Mandatory testing for sexually transmitted
diseases produces a two tier system of registered and non-registered
prostitutes with the latter having limited access to health care.

Legal measures have been introduced to try and prevent
HIV-positive people from working in prostitution. In the same way as mandatory
testing, these measures can also create problems by encouraging prostitutes to
hide from the authorities if they think they may be infected. Access to health
care will thus be hindered, since HIV-positive prostitutes are liable to
prosecution if they disclose their work; instead, they go underground.

The preceding information makes it clear that seeking to
control or limit significantly the transmission of disease by requiring
prostitutes to be registered is essentially a waste of time; it is ineffective
and ignores the reality of human behaviour. Any such recommendation should
therefore be ignored completely.

Another cause for concern in the Walrond report is the
astonishing advocacy of a course of action which could have serious adverse
consequences for us in Barbados if the recommendation is followed. It is known
that there is widely distributed and strongly held opposition in Barbados to
the legalisation of buggery, so the following statement in the report is cause
for great concern: “As with issues such as abortion one can expect vigorous
opposition from religious groups at any suggestion of reform, but once in
place such opposition tends to become muted”. This comment amounts to
telling the Government: Enact the legislation anyway and people will come to
accept it; surely a most cynical statement. The trouble is that when once
legislation is put on the statute books it becomes extraordinarily difficult
to have that legislation repealed or amended, no matter how unwise,
disadvantageous or undesirable it may be. As evidence of this consider the
following:

In 1974 the DLP under the late Mr. (now the Rt.
Excellent) Errol Barrow made changes in the Barbados Constitution which, among
other things, gave him the power to make appointments to the judiciary and the
proposed legislation was strongly and vociferously opposed by the Leader of
the Opposition BLP, the late Mr. J.M.G. “Tom” Adams. Following the
elections of 1976 Mr. Adams became the country’s Prime Minister and held
this post until his death in 1985, but despite his fulminations in 1974
against the legislation referred to above that legislation was not amended and
remains in force until this day despite the fact that the Barbados Labour
Party which vigorously opposed it in 1974 has since held office for 20 years!

This experience should serve as a constant reminder that
we need to keep our eyes peeled and to be on constant watch lest we get on our
statute books the very undesirable and indeed detrimental legislation
recommended in this report with respect to buggery and prostitution. We also
need to be on the look out for, and we must consciously guard against and
ignore, arguments that may sound attractive, but are essentially superficial
and decidedly unhelpful to our country on these very important issues.

In addition to advocating inappropriate and undesirable
legislation Professor Walrond made at least one statement which most assuredly
requires public explanation. With respect to the “transmission of HIV” he
stated: “Probably the greatest inhibiting factor to empowering persons to
protect themselves during sexual intercourse by the use of condoms has been
the demonisation of condoms by some religious teaching” (My emphasis).
Professor Walrond is entitled to his opinion about the provision and use of
condoms (he advocates providing them for prisoners), but his extraordinary
accusation that “some religious teaching” has “demonized” the use of
condoms is a statement for which he should surely have provided supporting
evidence. No such evidence is presented in the report which merely contains
his categorical but entirely unsupported criticism of “some religious
teaching”. In the view of many this allegation is inappropriate,
unjustifiable, unfounded and unwarranted, and unless supporting evidence is
provided confidence in the objectivity of the report is significantly reduced.
Some of Professor Walrond’s recommendations are indeed sound but others
should be discarded because of their inherent and demonstrable flaws and
shortcomings.